Supreme Court Faces a Docket Heavy With Unfinished Rights Cases

By LINDA GREENHOUSE,

Published: October 1, 1993

WASHINGTON, Sept. 30—
The Supreme Court's docket for the term that begins on Monday is sparse in numbers but heavy with the unfinished business of past years, particularly in the area of civil rights.

The newest Justice, Ruth Bader Ginsburg, who made her mark as a pioneer for women's rights in arguing landmark sex discrimination cases before the Court, has arrived to find an unusually wide array of discrimination cases already accepted for argument. Most raise questions that the Court itself has left unanswered in earlier rulings.

For example, one case calls on the Court to specify what an employee needs to show to prove a case of sexual harassment, which the Court first defined in 1986 as a form of employment discrimination that is subject to attack under Federal law. And, in a jury selection case, the Court is being asked to extend to sex the same principle it has already established for race and rule that lawyers may not use their peremptory challenges to eliminate prospective jurors on the basis of sex. Race and Voting Rights

The Justices will also decide whether the Civil Rights Act of 1991, which Congress passed to overturn a string of Supreme Court decisions in 1989 that narrowed Federal civil rights coverage, applies retroactively to the thousands of cases that were pending when the new law took effect.

Voting rights cases are also prominent on the Court's civil rights agenda. Decisions in cases from Florida and Georgia may show whether the Justices meant to embark on a fundamental re-examination of the role of race in electoral politics when they ruled last term that an oddly shaped North Carolina Congressional district, drawn to elect a black Representative, was a presumptively unconstitutional racial gerrymander.

The Court has so far chosen only 51 cases for argument during the new term, compared with 66 at this time last year and 70 the year before. The current number was even smaller until this week, when the Justices met for a day and a half to review the 1,500 new appeals that had accumulated over the summer.

When their conference was over on Tuesday, they took the highly unusual step of jumping the gun on the traditional first Monday in October and announcing that they had accepted seven new cases for argument. Head Start on Arguments

The early announcement was essentially a housekeeping measure. It gives the lawyers a head start in preparing briefs that must be filed on an unusually tight timetable to be ready for argument in early January. But it underscored the effect of a shrinking docket that the Court has never fully explained.

Without the acceleration, the Court, which tries to spread its arguments equally throughout the term and had already selected the cases for October through December, faced an awkward dearth of cases that could be fully prepared in time for January arguments. More cases for the following months will be added in the coming weeks.

So far, the docket for the new term bears relatively few criminal cases, no affirmative action cases and no cases on the relationship between church and state, to which the Court has paid much attention in the last few years.

The docket is sufficiently narrow, in fact, that it is possible that by the time the term ends in late June, Justice Ginsburg will not yet have had the chance to express herself on some of the most hotly contested areas of the Court's work.

But her influence is likely to be felt quickly nonetheless. The Court has been closely divided in the civil rights area, for example. Justice Byron R. White, whom she succeeded, often voted for narrow interpretations of Federal anti-discrimination laws; Justice Ginsburg is likely to cast more liberal votes in those cases.

Her vote could also make an important difference in the criminal area if she chooses a more liberal path than Justice White.

Change has been a constant at the Court in recent years, with five new Justices since 1986. Retirement rumors are common, but it would surprise few people if Justice Harry A. Blackmun, now 84 and, with 23 years' service, the senior Associate Justice, decides to retire at the end of this term.

These are the details of some of new term's most important cases: Civil Rights

The harassment case, Harris v. Forklift Systems, No. 92-1168, marks only the second time the Court has considered the legal consequences of sexual harassment on the job. The Court ruled unanimously in 1986 that a sexually hostile work environment is a form of sex discrimination, prohibited by Title VII of the Civil Rights Act of 1964. But without further guidance from the Justices, the lower Federal courts have split over how to define the existence of such an environment.

In this case, a woman who worked as a manager at a Nashville truck leasing company sued the man who owned the company, charging him with continually subjecting her to vulgar and sexually demeaning remarks. While accepting her accusations as true, lower courts dismissed the case on the ground that the behavior had not caused her "severe psychological injury."

The Court is not likely to agree that a hostile work environment requires proof of psychological injury, and in fact the company itself stopped defending that standard once the Justices agreed to hear the woman's appeal. But the Court's eventual choice of a standard -- whether, for example, the offending behavior should be viewed from the perspective of the victim or instead from that of a hypothetical "reasonable woman" -- could determine how powerful a tool this aspect of discrimination law will be in the future.

The Court will use two cases, one involving a claim of sex discrimination and the other race discrimination, to decide whether the Civil Rights Act of 1991 should be given retroactive effect. Congress and the Bush Administration could not resolve the retroactive issue when the law was passed -- Congress wanted retroactivity, but the Administration was vigorously opposed -- and so the issue was left to the courts.

Beyond the decision's impact on thousands of pending cases, the Court may also arrive at a general rule for determining whether new laws should be given retroactive effect in the absence of an explicit Congressional directive. The cases are Landgraf v. USI Film Products, No. 92-757, and Rivers v. Roadway Express, No. 92-938.

In a series of rulings since 1986, the Court has made race an impermissible factor in the selection of juries. Now it will decide whether sex is in the same prohibited category. The State of Alabama, suing a man in state court to establish his paternity and child support obligation, used its peremptory challenges to remove male prospective jurors and create an all-female jury.

The Alabama courts rejected the man's argument that the exclusion of men amounted to unconstitutional sex discrimination. The case is J. E. B. v. T. B., No. 92-1239.

The voting rights cases from Georgia and Florida raise separate issues under the Voting Rights Act. Black voters, who make up nearly one-fifth the population of rural Bleckley County, Ga., persuaded a Federal appeals court that the single-member commission that governs the county serves to dilute their voting power, in violation of the law. At issue for the Supreme Court in this case, Holder v. Hall, No. 91-2012, is whether the Voting Rights Act applies in that situation, and whether it authorizes a Federal court to expand the membership of the governing body.

The underlying question in a pair of procedurally complex redistricting cases from Florida is whether the plans that the State Legislature drew for its own reapportionment violated the Voting Rights Act by not providing the maximum possible number of districts in which Hispanic residents would make up a majority. The Florida State Senate case, DeGrandy v. Johnson, No. 92-593, also involves potentially competing claims by black and Hispanic residents. The State House of Representatives case is Johnson v. DeGrandy, No. 92-519. Criminal Law

In the most important of several death penalty cases, the Court will decide whether a Tennessee law provides an unconstitutional shortcut to a sentence of death for those who murder in the course of committing another crime, like robbery or kidnapping.

Under Tennessee's capital punishment law, felony murder, as well as intentional murder, is subject to the death penalty. Once a jury has convicted a defendant of murder, the jury decides in a separate proceeding whether to sentence that defendant to death. In order to impose the death penalty, the jury must find one or more "aggravating circumstances," and in Tennessee the fact that it was during the course of another felony that a murder was committed is itself an aggravating circumstance.

The Tennessee Supreme Court found that the law's structure invited an impermissible "double counting" for felony murder that is not present when the crime is intentional murder in the absence of another felony.

This case, Tennessee v. Middlebrooks, No. 92-989, could indicate the Court's current view of the extent to which a jury's discretion should be curbed in death penalty cases. Justice Ginsburg has not spoken publicly on the death penalty, and this case could offer a clue to her approach.

Another case, involving forfeiture of personal property after a drug conviction, is not strictly a criminal case; the question is whether a person has a due process right to advance notice and a hearing before the Government can seize a home or other real estate.

But the Justices are aware that the Government's aggressive use of its forfeiture authority is part of its overall strategy in combating drugs. Last term, the Court ruled for the first time that a seizure that is disproportionate to the crime can violate the Eighth Amendment's prohibition against excessive fines. This case, United States v. Good, No. 92-1180, could show whether the Court's skepticism toward forfeiture last term was a show of more than passing concern. Speech

The Court added one of the most interesting First Amendment cases in years to its docket this week, on the subject of cable television's status under the Constitution. The case is a challenge by cable operators and providers to a 1992 law that requires cable systems to devote one-third or more of their channel capacity to local broadcast stations.

Any law imposing an analogous requirement on what a newspaper should print would be flatly unconstitutional under the Court's First Amendment precedents. By contrast, the Court has accorded less constitutional protection to television, permitting intrusive Federal regulation on the theory that the limited broadcast spectrum is a valuable public resource. The Justices have never defined the constitutional status of cable television, which now reaches 60 percent of American households. The case is Turner Broadcasting v. Federal Communications Commission, No. 93-44.

A second case, raising statutory rather than constitutional issues, could define the status of parody under Federal copyright law. The rap music group 2 Live Crew is appealing a Federal court ruling that the group was not entitled to record, without permission from the copyright holder, a parody of Roy Orbison's country music classic "Oh, Pretty Woman." The group is arguing that its parody should be considered "fair use" of the original song rather than copyright infringement. The case, Campbell v. Acuff-Rose Music, No. 92-1292, has attracted great interest in the music and publishing industries. Abortion

Although without any case on the right to abortion itself, the docket does include the second case in two years on the availability of Federal law to curb or punish protests aimed at shutting down abortion clinics.

The question in this case, National Organization for Women v. Scheidler, No. 92-780, is whether the Federal racketeering law -- known as RICO, for the Racketeer Influenced and Corrupt Organizations Act -- applies in the clinic protest context.

The RICO law makes it a crime to conduct an enterprise through a pattern of racketeering activity. In dismissing a lawsuit brought on behalf of abortion clinics against Operation Rescue and other protest groups, a Federal appeals court in Chicago ruled that while the suit did make persuasive accusations of a conspiracy, the RICO law applied only to acts having a financial rather than a political or social motive.

The Clinton Administration is supporting the clinics' appeal, arguing that beyond the abortion context, the Government needs to be able to use RICO to "prosecute acts of terrorism and violence assertedly motivated by political or religious purposes" regardless of whether the terrorists have any financial motive.

Photo: Much unfinished business and a new Justice, Ruth Bader Ginsburg, await the Supreme Court, where all was quiet yesterday. (Stephen Crowley/The New York Times)